Setting the Record Straight: Democrats Continue to Attack Terrorist Surveillance Program

"The
NSA's terrorist surveillance program is targeted at al Qaeda
communications coming into or going out of the United States. It is a
limited, hot pursuit effort by our intelligence community to detect and
prevent attacks. Senate Democrats continue to engage in misleading and
outlandish charges about this vital tool that helps us do exactly what
the 9/11 Commission said we needed to do - connect the dots. It defies
common sense for Democrats to now claim the administration is acting
outside its authority while their own party leaders have been briefed
more than a dozen times - only after there was a leak and subsequent
media coverage did they start criticizing the program. Such
irresponsible accusations will not keep us from acting to stay a step
ahead of a deadly enemy that is determined to strike America again."

- Scott McClellan, White House Press Secretary

Setting The Record Straight On The Legality Of NSA Activities To Safeguard Americans.

Sen. John Kerry (D-MA) Claims That The NSA Terrorist Surveillance Program Is Illegal.
SEN. KERRY: "It is a violation of law. ... There's nothing in the FISA
law that we passed that suggests the President has this power." (ABC's
"This Week," 1/22/06)

But The President's Authorization Of The Terrorist Surveillance Program Is Consistent With U.S. Law.

The
President Has The Inherent Authority Under The Constitution, As
Commander-In-Chief, To Authorize The NSA Terrorist Surveillance Program.
AG GONZALES: "I might also add that we also believe the President has
the inherent authority under the Constitution, as Commander-in-Chief,
to engage in this kind of activity. Signals intelligence has been a
fundamental aspect of waging war since the Civil War, where we
intercepted telegraphs, obviously, during the world wars, as we
intercepted telegrams in and out of the United States. Signals
intelligence is very important for the United States government to know
what the enemy is doing, to know what the enemy is about to do." (The
White House, Press Briefing, 12/19/05)

The
Congress Confirmed And Supplemented This Authority When It Passed The
Authorization For The Use Of Military Force In The Wake Of The 9/11
Attacks. AG GONZALES: "Now, in terms of legal authorities, the
Foreign Intelligence Surveillance Act ... requires a court order before
engaging in this kind of surveillance that I've just discussed and the
President announced on Saturday ... unless otherwise authorized by
statute or by Congress. That's what the law requires. Our position is,
is that the authorization to use force, which was passed by the
Congress in the days following September 11th, constitutes that other
authorization, that other statute by Congress, to engage in this kind
of signals intelligence." (The White House, Press Briefing, 12/19/05)

The
Supreme Court Ruled That The AUMF's Authorization To "Use All Necessary
And Appropriate Force" Encompasses The "Fundamental Incident[s] Of
Waging War." AG GONZALES: "[O]ne might argue, now, wait a
minute, there's nothing in the authorization to use force that
specifically mentions electronic surveillance. Let me take you back to
a case that the Supreme Court reviewed this past - in 2004, the Hamdi
decision. ... [In Hamdi, the Supreme Court said that] it was clear and
unmistakable that the Congress had authorized the detention of an
American citizen captured on the battlefield as an enemy combatant for
the remainder - the duration of the hostilities. So even though the
authorization to use force did not mention the word, 'detention,' she
felt that detention of enemy soldiers captured on the battlefield was a
fundamental incident of waging war, and therefore, had been authorized
by Congress when they used the words, 'authorize the President to use
all necessary and appropriate force.'" (The White House, Press
Briefing, 12/19/05)

Interception Of Communications Has Been Authorized Since President Roosevelt In 1940.
"[Interception of communications for foreign intelligence purposes]
have been authorized by Presidents at least since the administration of
Franklin Roosevelt in 1940." ("Legal Authorities Supporting The
Activities Of The National Security Agency Described By The President,"
U.S. Department Of Justice, 1/19/06)

Every
Federal Appellate Court To Rule On The Issue Has Concluded That The
President Has Inherent Authority To Conduct Warrantless Searches.
"The courts uniformly have approved this longstanding Executive Branch
practice. Indeed, every federal appellate court to rule on the question
has concluded that, even in peacetime, the President has inherent
constitutional authority, consistent with the Fourth Amendment, to
conduct searches for foreign intelligence purposes without securing a
judicial warrant." ("Legal Authorities Supporting The Activities Of The
National Security Agency Described By The President," U.S. Department
Of Justice, 1/19/06)

Setting The Record Straight On Congressional Briefings On The NSA Terrorist Surveillance Program To Safeguard Americans.

Rep. Jane Harman (D-CA) Claims That The Administration Is Violating The National Security Act Of 1947.
REP. HARMAN: "I think the Administration is violating the National
Security Act of 1947 by failing to brief the full intelligence
committees." (ABC's "This Week," 1/22/06)

But The Administration Has Repeatedly Briefed Congress On The NSA Terrorist Surveillance Program.

Congressional Leaders "Have Been Briefed More Than A Dozen Times" On The NSA Terrorist Surveillance Program.
THE PRESIDENT: "Leaders in Congress have been briefed more than a dozen
times on this authorization and the activities conducted under it.
Intelligence officials involved in this activity also receive extensive
training to ensure they perform their duties consistent with the letter
and intent of the authorization." (President Bush, Radio Address,
12/17/05)

Rep Pete Hoekstra (R-MI) Says That Members Of Congress Had Multiple Opportunities To Ask Questions And Express Concerns.
REP. HOEKSTRA: "When the program began, I guess, roughly four years
ago, you know, congressional leaders were brought in. The leadership of
the House and the Senate, the leadership of the House and Senate
intelligence committees - I've been chair for about 15 months - I've
been briefed four times on this, I've been given every opportunity to
ask questions about the program, to ask questions about the legality of
the program, to understand the scope of the program and how it works
and, most importantly, the impact it has. I've had every opportunity to
get information on the program. And I have a responsibility, as the
chairman of the Intelligence Committee, that if I believe the law is
being broken to stand up in that meeting and say, stop it and we're
going to do everything in Congress. The problem that we have right now
is we have a whole bunch of Democrats who were for this program before
they were against it and the only thing that has changed is that the
story was illegally, in a damaging way, leaked to The New York Times." (ABC's "This Week," 1/22/06)

These Briefings Are Fully Consistent With The National Security Act Of 1947.
The Act expressly states that Executive Branch briefings should be
conducted in a manner consistent with "due regard for the protection
from unauthorized disclosure of classified information relating to
sensitive intelligence sources and methods or other exceptionally
sensitive matters." (50 USC 413a(a))

Setting The Record Straight On The Use Of The FISA Court.

Sen. Dick Durbin (D-IL) Says The Administration Should Be Using The FISA Court.
FOX NEWS' CHRIS WALLACE: "Senator, let's talk about the NSA wiretap
program, though. We all saw the Osama bin Laden tape that came out late
this week. If someone from Al Qaida in Pakistan is calling someone here
in the U.S., don't you want to know what they're talking about?" SEN.
DURBIN: "Absolutely. And that's why we created the FISA court." (Fox
News' "Fox News Sunday," 1/22/06)

But The NSA Terrorist Surveillance Program Provides The Speed And Agility Needed To Prosecute The War On Terror.

Former Clinton Administration Associate Attorney General Writes That "FISA Does Not Anticipate A Post-Sept. 11 Situation."
"The administration has offered the further defense that FISA's
reference to surveillance 'authorized by statute' is satisfied by
congressional passage of the post-Sept. 11 resolution giving the
president authority to 'use all necessary and appropriate force' to
prevent those responsible for Sept. 11 from carrying out further
attacks. The administration argues that obtaining intelligence is a
necessary and expected component of any military or other use of force
to prevent enemy action. But even if the NSA activity is 'electronic
surveillance' and the Sept. 11 resolution is not 'statutory
authorization' within the meaning of FISA, the act still cannot, in the
words of the 2002 Court of Review decision, 'encroach upon the
president's constitutional power.' FISA does not anticipate a
post-Sept. 11 situation. What was needed after Sept. 11, according to
the president, was surveillance beyond what could be authorized under
that kind of individualized case-by-case judgment. It is hard to
imagine the Supreme Court second-guessing that presidential judgment."
(John Schmidt, Op-Ed, "President Had Legal Authority To OK Taps," The Chicago Tribune, 12/21/05)

The Government Continues To Use The FISA Court But Must Preserve The Flexibility To Act With Speed In All Circumstances.
AG GONZALES: "Well, we continue to go to the FISA court and obtain
orders. It is a very important tool that we continue to utilize. ...
The operators out at NSA tell me that we don't have the speed and the
agility that we need, in all circumstances, to deal with this new kind
of enemy. You have to remember that FISA was passed by the Congress in
1978. There have been tremendous advances in technology ... since
then." (The White House, Press Briefing, 12/19/05)

Because Of Its Speed, The NSA Terrorist Surveillance Program Has Provided Crucial Information Otherwise Not Available.
GENERAL HAYDEN: "I can say unequivocally, all right, that we have got
information through this program that would not otherwise have been
available." QUESTION: "Through the court? Because of the speed that you
got it?" GENERAL HAYDEN: "Yes, because of the speed, because of the
procedures, because of the processes and requirements set up in the
FISA process, I can say unequivocally that we have used this program in
lieu of that and this program has been successful." (The White House,
Press Briefing, 12/19/05)